Alabama Voices: There are more Robert Melsons than Tommy Arthurs

Thomas Arthur, who had escaped execution seven times in the past, has been put to death. He was pronounced dead at 12:15 a.m.

Wochit

On May 26, minutes after midnight, Tommy Arthur was put to death by lethal injection. “His case,” Gov. Kaye Ivey said, “was reviewed thoroughly at every level of both our state and federal courts, and the appellate process has ensured that the rights of the accused were protected.”

Proponents of this law claim that death penalty appeals take too long, frustrating the interests of justice and prolonging the agony of victims’ families. Arthur’s case, which spanned more than three decades and involved, among other things, two retrials and seven execution dates set aside at the last minute by dramatic claims of newly discovered evidence and questions about the constitutionality of Alabama’s death penalty scheme and execution protocol, was often cited as a case in point.

Yet despite everything, questions remained even up to the moment of Arthur’s death. His execution was immediately preceded by a strongly-worded dissent from U.S. Supreme Court Justice Sonya Sotomayor, who contended that Alabama’s refusal to allow his lawyer to bring a phone with her into the viewing room so that she could alert the court to irregularities in the execution meant that “when Thomas Arthur enters the execution chamber … he will leave his constitutional rights at the door.”

Arthur was lucky to have his constitutional rights honored that long. Robert Melson, an Alabama death row prisoner who is set to be executed on June 8, has not been so fortunate. While Arthur’s post-conviction lawyers did battle on his behalf for years and stuck with him to the end, Melson’s lawyers abandoned him long ago. Despite strenuous efforts by his current attorneys and a moment of hope in 2011, when the U.S. Supreme Court remanded his case for a hearing on the question of whether his previous attorneys’ negligent behavior was irresponsible enough to merit an exception to the strict rules governing deadlines for post-conviction appeals, Melson, if he is executed on June 8, will go to his death without ever having had a hearing on the merits of his post-conviction case.

The difference between Arthur’s trajectory and Melson’s comes down to luck. While Arthur was blessed in post-conviction with a team of committed, competent, creative, and tenacious lawyers from a deep-pocketed and generous New York law firm – and helped also by the multitude of prosecutorial and judicial missteps that necessitated two retrials -- Melson was cursed when the out-of-state lawyer who took his case, and the inexperienced local counsel, turned out to be well-meaning but incompetent bumblers who doomed his case by missing a crucial deadline.

There are serious questions about the integrity of Melson’s conviction. Arrested for being in the wrong place at the wrong time and for having skin the same color as the alleged shooter’s, his death sentence rests on a pair of shoes that were a size and a half too small for him, two pebbles, a seed, and the self-serving statement of an intellectually disabled and emotionally disturbed teenager who has since recanted. No physical evidence at the scene connects Mr. Melson to this crime. Yet because his post-conviction counsel abandoned him, he has never had a chance to air evidence of his innocence in court.

Alabama is almost alone among death penalty states in declining to provide death-sentenced prisoners with attorneys to help them challenge their convictions during the state post-conviction phase, known as Rule 32. Except on the rarest of occasions, Rule 32 is the only opportunity most inmates have to put on evidence that innocence or other factors mean they are deserving of new trials. Alabama inmates must rely on the kindness of strangers to take their cases – and, as Melson’s and many other cases prove (including that of Ron Smith, who was executed in December 2016 and whose Rule 32 lawyer also abandoned him) – kindness is not enough.

In a recent letter to his lawyer, Melson wrote, “I don’t know much, I didn’t even finish high school. But this I do know, I am scared and I need someone to see me, hear me! PLEASE.”

The courts saw and heard Tommy Arthur. He was executed anyway, and questions remained, but at least he was lucky enough to have attorneys who fought for him every step of the way. Though Melson now has lawyers who have begged the courts to make an exception and allow him to put on evidence about the flaws in his conviction, the courts have ruled that they came too late in the day. Only the governor can save him now – and in living memory, only one Alabama governor has granted clemency to a death-sentenced prisoner.

The argument for the Fair Justice Act, like many arguments about the death penalty, is premised on the idea that some people somehow get too much justice. But there are many more Robert Melsons than Tommy Arthurs. In its rush to exact vengeance, the state must not neglect its duty to see and hear them all.

Jake Watson is a Huntsville-based solo practitioner who represents clients in state and federal court. He has been honored by the Alabama Criminal Defense Lawyers Association for his work on capital cases, and serves as a board member of the Alabama Post-Conviction Relief Project (alapcrp.org).